Child welfare in Pennsylvania: They’re getting ready to dial up the crazy again, part 1

            Every few years since the scandal involving Jerry Sandusky, the convicted child rapist, former Penn State football coach, former foster parent and former group home operator, Pennsylvania legislators churn out a new set of bad laws so they can then churn out press releases about how they’ve “cracked down on child abuse.”

            At least one statewide official, State Auditor Eugene DePasquale, has been quick to exploit the tragedy surrounding this former foster parent and group home operator to promote policies that are only likely to lead to more children needlessly placed in foster homes and group homes.  He also comes frighteningly close to trafficking in conspiracy theories.

            Now it looks likely to happen again.  This time the target is the bare minimum amount of due process that exists for families in which someone is wrongly labeled a child abuser, sometimes based on little more than a caseworker’s guess.

            A new report, from researchers affiliated with a group set up by Penn State to do penance for its role in the Sandusky scandal, is attacking the same minimal due process protections that DePasquale went after last year.  I don't doubt that the researchers have the best of intentions. But their bias is, literally, visible in the report itself.

The background

            As in most states, in Pennsylvania all it may take to be labeled a child abuser is for a caseworker to check a box on a form based on her or his belief that it is slightly more likely than not that the accused abused or neglected a child. 

In cases of abuse and what authorities deem severe neglect, that puts you in a statewide central register and can bar you from all sorts of jobs that involve coming anywhere near children. (Pennsylvania is unusual in that the statewide register doesn’t apply to all neglect cases.)  Being on the blacklist bars you from jobs ranging from teacher, to crossing guard, to school lunch aide, to clerk in a children’s bookstore. It also bars those blacklisted from working in home health care.  And, though not required by law, some employers even bar the blacklisted form working with the elderly.

Many of these are low-wage jobs – first-step-out-of-poverty-jobs. So, as with everything else in child welfare, being wrongly blacklisted does the most harm to poor families. The stress of the listing and potential job loss itself increases the harm to children. The harm worsens if the parent on the blacklist can’t get a job, making it more likely the family will be plunged into poverty that is confused with neglect.

            And, of course, being listed in the registry means the next time the same person is accused, it is that much more likely the children’s suffering will increase exponentially because the worker will be more likely to place those children, needlessly, in foster care.  After all, they were accused before so they must be guilty, right?

            “All too often, indicated reports are based on faulty or incomplete investigations, or on actions or omissions by parents or caretakers that simply do not meet the statutory definitions of child abuse,” writes Janet Ginzburg, a lawyer for Community Legal Services of Philadelphia.  She cites this example:

A woman and her ex-husband shared custody of their 18-month-old daughter. After spending the weekend at her dad's house, the girl was returned to her mother's home with a case of diaper rash.

The dad notified the mom of the rash and gave her a tube of ointment that he had been applying. The mom watched the rash for several days, applying the ointment as directed by the medication's instructions. When the rash did not go away, she took her daughter to the doctor, who found that the rash had become infected and reported the mother to the local child-welfare agency for child neglect.

The mom had done what almost every parent would have under the circumstances - she had treated the rash, watched it closely, and ultimately made the decision that it required medical attention. However, she was placed on the civil statewide Childline Abuse Registry and lost her job as a home health aide. Until she was able to get a hearing and clear her name - a process that can take as long as a year - she was unable to get another job in the profession she had been trained in.

            Note that the mother did not get a hearing before she was blacklisted; she had to fight her way out afterwards.  As Ginzburg explains:

There is no hearing, no opportunity to present evidence. A caseworker checks off a box, and an individual is placed on the registry effectively for life - unless this person successfully appeals within a very short deadline.

            An appeal is the only way out.  That way already is foreclosed in many cases.  And in the latest example of ratcheting up the crazy, it looks like DePasquale and others are gearing up for an effort to make that one way even harder.

Pennsylvania’s weird system 

In Pennsylvania, the child abuse hotline and the central register are run by the state, but almost everything else is the responsibility of individual counties.  That’s unusual, but not unique. New York, for example, operates the same way.

            But here’s what is unique about Pennsylvania: Unlike every other state, Pennsylvania classifies abuse and what they deem the most serious cases of neglect as “child protective services” (CPS).  But other neglect cases are classified as “general protective services” (GPS).  In both types of case, a report can lead to an intrusive, coercive investigation and in both types of case that investigation can lead to consigning the children to the chaos of foster care. 

            The statewide central register applies only to CPS cases.  There is no statewide register for GPS cases – but counties still keep these records. They are not checked by employers, but they are used by county child welfare agencies in assessing future reports alleging abuse or neglect.  (This is especially dangerous in Allegheny County, where they’ve created an Orwellian automated predictive analytics algorithm that relies heavily on these data.)

            This makes it especially important that the accused have a chance to correct the record, since the record can be no more than a caseworker’s guess.

           

But in GPS cases, because there is no statewide central register, there is no appeals mechanism at all.  The caseworker’s word is – almost literally – law.  The family has no recourse against this stigmatizing and stereotyping – and in Pittsburgh, no recourse against such a false report raising an arbitrary risk score that can haunt not only the parents, but their children for life.

            Needless to say that’s not what has people like DePasquale upset.  Nope. They’re upset with the minimal due process protections that exist in CPS cases.

            In these cases, one can seek administrative review from the same state agency that runs the statewide child abuse hotline. But of the 982 such cases they reviewed for which they reached a decision in 2018 they overturned exactly zero.

            Clearly one’s only hope is to take the case to a neutral arbiter, still a state agency but one outside the human services bureaucracy. In Pennsylvania it’s the Bureau of Hearings and Appeals.  Only 955 cases reached the BHA in 2018. They ruled on 545 cases that year.

            If that name – Bureau of Hearings and Appeals -- is vaguely familiar, it’s because that agency was the subject of a bizarre rant last year by Auditor General DePasquale.  As I noted on this blog last year:

DePasquale … claims that in hearing appeals, BHA upholds [county children and youth services agency] caseworker findings only four percent of the time.  As a result, he claims, “the system is potentially sending hundreds of children back into the homes where CYS caseworkers found they were being abused.”  Then he ratchets up the fear rhetoric with this:  “No child should ever have to go back into an abusive situation because bureaucrats have their heads buried in the sand.”

There are two problems with this: The four percent figure is contradicted by readily available data, and BHA decisions have no bearing on whether children are removed from or returned to their homes.

            BHA decisions apply only to whether someone stays on the state’s child abuse blacklist, nothing more.  Whether children are removed from the home and where they wind up is decided exclusively by county child protective services agencies and courts.  DePasquale held a news conference and went on his rant apparently unaware of this basic fact.

            But DePasquale went further.  Veering toward conspiracy theory territory, he even suggested that there is something nefarious in the agency’s name: Bureau of Hearings and Appeals.  The more likely explanation: It’s called the Bureau of Hearings and Appeals because it holds hearings and listens to appeals.

            DePasquale made all these bizarre claims during a news conference announcing an “investigation” into the BHA -- as opposed to doing it the old-fashioned way, in which one conducts the investigation first and then draws the conclusions.

            As for that claim that BHA upholds caseworker claims only four percent of the time, nobody outside DePasquale’s office knows where they got it.  What we do know is, it’s wrong.

            The state Department of Human Services claims that BHA overrules county child welfare agency findings 46 percent of the time.  But I don’t know where they came up with that number either.  In fact, in the relatively few cases that make it to the BHA, it appears that BHA reverses caseworker decisions about 70 percent of the time.  (When you count all cases that are appealed, both to BHA and administratively – where nothing gets overturned – the percentage drops to under 25 percent.)

            The statistic concerning the BHA can lead to two possible conclusions: 

            1. The BHA is made up of a bunch of biased and / or ignorant administrative judges who love coddling child abusers and hurting innocent children!

            Or:

            2. As soon as the accused, at long last, reaches an independent tribunal, it turns out the case was so flimsy and / or the investigation so slipshod that it isn’t even slightly more likely than not that abuse occurred. 

            Here are some reasons why Option 2 is more likely.

            ● Pennsylvania is not unique. In Kentucky between 56 and 66 percent of cases are overturned in a typical year. In New York and Illinois class-action lawsuits revealed that when people finally make it through the slow, cumbersome appeals process they win 75 percent of the time. (NCCPR’s vice president brought the New York suit.) 

            ● In Pennsylvania, the most serious cases never get appealed at all.  If the case results in a criminal conviction it usually can’t be appealed.  Of the rest, only parents with extraordinary determination can be heard before the BHA. That’s because there’s no right to counsel if you can’t afford a private lawyer.  You have to file your own appeal within a tight timeframe, go to Harrisburg and then you’re all alone against the might of the state.  In fact, as Ginzburg notes, you can’t even see the case file with the evidence against you.

            As Pittsburgh attorney Amanda Green Hawkins put it: “It’s like David taking on Goliath.”

● In North Carolina and Missouri state Supreme Courts found that putting someone in a registry first and then holding a hearing so stacks the deck that it’s unconstitutional. Several judges in Pennsylvania have   expressed similar qualms, quoting the Missouri decision with approval.

            ● As we noted last year, DePasquale has himself expressed alarm at the inexperience, overload, and high turnover among frontline caseworkers. Since these are precisely the conditions most likely to lead to errors in all directions, it’s no wonder the independent BHA finds error so often.

            But somehow I have a feeling that, when DePasquale gets around to issuing the report on the investigation for which he’s already drawn his conclusions, something reportedly expected in the summer, he’ll go with Option 1.

            And he already seems to be getting some support in a report that is biased on its face – specifically on page 13, where you’ll find this flow chart that purports to describe the appeals process. Take a close look and see if you can spot the bias. (Hint: It’s in the lower left quadrant).

            This new report doesn’t just discuss the issue of appeals. It’s a multi-front assault on due process. There's more about that in part two.

Child welfare in Pennsylvania: A state official’s bizarre rant

The state’s “Auditor General," Eugene DePasquale, attacks an agency called the Bureau of Hearings and Appeals – for holding hearings and ruling on appeals.  He even suggests there's something nefarious in the agency's choice of name.

It’s always risky to say that a particular politician’s claims about child welfare set a record for foolishness, but a bizarre rant by Pennsylvania Auditor General Eugene DePasquale about a division of the state Department of Human Services (DHS) is a contender.  It isn’t just that DePasquale’s statements are weird. Worse, those statements endanger the children I’m sure he genuinely wants to protect.

DePasquale spoke last week at a news conference announcing an investigation of a division of DHS known as the Bureau of Hearings and Appeals (BHA). But he’s not waiting to actually investigate to draw conclusions. He’s already decided that “If that sounds like something out of bureaucracy purgatory, that’s exactly what this is” and branded it a “shadow justice system.” 

It isn’t.  And DePasquale’s ill-informed fear-mongering only adds to the climate of hysteria that surrounds child welfare in Pennsylvania. That leads to overloading the system with false reports, trivial cases and cases in which family poverty is confused with neglect.  And that overloads workers so they have less time to find children in real danger.

Anyone who wants to know what the BHA is and what it does can find it on the internet, right here. And if you search for “Bureau of Hearings and Appeals” you’ll also find lots and lots of similar divisions of government agencies all over the country. Administrative tribunals are a routine part of American law – not some nefarious secret creation of one agency in Pennsylvania.

First page of results when I typed "Bureau of
Hearings and Appeals" into a search engine.
(I used DuckDuckGo instead of Google, because
it produces the same results for everyone )

In the case of that one agency in Pennsylvania, however, the Bureau of Hearings and Appeals holds hearings and rules on appeals involving many situations, including a narrow subset of decisions by caseworkers for county child protective services agencies, usually known in Pennsylvania as Children and Youth Services (CYS) agencies.  But BHA has no jurisdiction over the decisions DePasquale seems to think they have jurisdiction over.

DePasquale further claims that in hearing appeals, BHA upholds CYS caseworker findings only four percent of the time.  As a result, he claims, “the system is potentially sending hundreds of children back into the homes where CYS caseworkers found they were being abused.”  Then he ratchets up the fear rhetoric with this:  “No child should ever have to go back into an abusive situation because bureaucrats have their heads buried in the sand.”

There are two problems with this: The four percent figure is contradicted by readily available data, and BHA decisions have no bearing on whether children are removed from or returned to their homes.

What BHA does NOT do:

Here’s how the system really works:

Caseworkers for CYS agencies investigate allegations of abuse and neglect and then make a series of decisions including whether the family should be put under some kind of agency supervision and whether children should be taken from their parents. 

DePasquale seems to think these decisions can be appealed to the BHA.  They can’t. He seems to think BHA can overturn these decisions and return children to their homes.  It can’t.  BHA has no role whatsoever in these decisions.

Yet DePasquale makes this bizarre claim:

Most people believe that once CYS has determined that someone abused a child, criminal charges automatically follow. In reality, only a small percentage of those cases result in criminal charges.

Most of the time, this administrative court is as far as it gets.

No; it’s not.

If CYS decides either to remove a child or place a child under in-home supervision it does indeed go to court – a court of which DePasquale appears blissfully unaware: Juvenile Court (sometimes called Family Court). These courts, not BHA, decide whether or not CYS should be allowed to take away a child (or if caseworkers already have done it on their own authority, whether to continue placement).  These courts, not BHA, decide whether the child will ever go home again. 

The real problem with these courts, all over the country, is their tendency to rubber-stamp child protective services agency decisions, not overturn them.  As a practical matter, the decision almost always rests with the CYS agency.

Few cases also go to criminal court because typical cases are nothing like the horror stories. Far more common are cases in which family poverty is confused with neglect.  And the fact that these juvenile court cases are handled as civil, not criminal matters, actually gives more power to CYS agencies. That’s because in these courts the protections for the accused in criminal cases don’t apply. 

In criminal court, for example, the accused must be guilty beyond a reasonable doubt.  But in juvenile court a child can be torn from her or his family and consigned to the chaos of foster care if CYS shows only that it is slightly more likely than not that abuse or neglect occurred.  If DePasquale really wants to apply criminal court standards of proof to all these cases, that’s fine with me. The number of children torn from their homes would plummet.

What BHA actually does:

As for BHA, it’s much more limited role involves only one, separate decision made by CYS workers: whether to check a box on the form declaring the allegation “indicated” or “unfounded.”   This is something CYS workers and supervisors do on their own authority, with no chance for the family to defend itself in front of a neutral arbiter beforehand.

The consequences of checking the “indicated” box are severe. The accused is listed in a statewide blacklist and, as a practical matter, barred from professions that involve working with children. Often it then becomes that much harder for impoverished Pennsylvanians to earn a living, increasing the poverty that may have been confused with “neglect” in the first place.  (And, if the family happens to live in Allegheny County, the consequences can be worse.)  This is why federal law requires all states to have some sort of process to appeal these findings.

This is the one and only place where BHA gets involved in child welfare. They can overturn the decision to check the “substantiated” box.  But a majority of the time, they don’t.

I have no idea where DePasquale got his four percent figure – and apparently neither does the Department of Human Services, which tactfully declared that it "looks forward to better understanding the data referenced.”  As DHS points out, state data, presented in easy-to-read graphics on page 20 of this report, show otherwise:

The Pennsylvania Department of Human Services has an easy-to-follow
guide to what the BHA is and the results of its decisions on Page 20 of this report.

But though caseworker decisions are not overturned 96 percent of the time, as DePasquale suggests, A DHS spokeswoman says they are overturned about 46 percent of the time.  In fact, the data appear to show a higher reversal rate, more like 70 percent. But that would be entirely in keeping with other states, such as New York and Illinois.  That is, indeed, alarming – but not in the way DePasquale thinks.  The fact that as soon as families get even a minimal opportunity to make their case before a neutral arbiter, the arbiter so often finds CYS is wrong shows the extent to which CYS decisions are arbitrary, capricious and cruel.

That should come as no surprise to DePasquale. He has himself expressed alarm at the inexperience, overload, and high turnover among CYS caseworkers. Since these are precisely the conditions most likely to lead to errors in all directions, DePasquale should be leading the charge for a strong appeals process.  But he’s not.

Instead, at one point DePasquale even suggests something that sounds vaguely like a conspiracy theory. He suggests there is something nefarious in the agency’s choice of name. Says DePasquale:

“You come up with that name when nobody cares about it. Because if it was actually about protecting children, they would call it the something-dealing-with-protection-of-children.  That’s just someone that threw in the towel and came up with a bureaucratic name hoping nobody would pay attention to it.”

I suppose that’s one possibility. Or maybe, just maybe, it’s called the Bureau of Hearings and Appeals because it holds hearings and decides appeals.

As for calling it the “something-dealing-with-protection-of-children” that might be a little confusing.  That’s because in addition to hearing appeals of listings on the state’s blacklist it also deals with disputes in nearly 279 other areas of state government including

the denial, suspension, termination, or reduction of any DHS-issued benefit (Cash Assistance; Medical Assistance; Supplemental Nutrition Assistance Program (SNAP) benefits, formerly known as Food Stamps; social services; durable equipment; etc.).

Calling it the “something-dealing-with-protection-of-children” might be particularly confusing for those appealing decisions by the state Department of Aging – BHA handles those, too.

Of course, if DePasquale would prefer a system in which the accused are not put on a blacklist of alleged child abusers without an actual court conviction first, I would be glad to support such an approach.  Indeed, some Pennsylvania appellate judges have expressed qualms about Pennsylvania’s blacklist-first-ask-questions-later approach.

I also have a more modest proposal: Next time, Mr. DePasquale, try doing the investigating first and then holding the news conference.